Catch and Kill Jurisdiction

Abstract

In catch and kill journalism, a tabloid buys a story that could be published elsewhere and then deliberately declines to publish it. In catch and kill jurisdiction, a federal court assumes jurisdiction over a case that could be litigated in state court and then declines to hear the merits through a nonmerits dismissal. Catch and kill journalism undermines the free flow of information. Catch and kill jurisdiction undermines the enforcement of substantive rights. And, importantly, because catch and kill jurisdiction relies on jurisdictional and procedural law, it is often able to achieve ends that would be politically unpalatable by other means.

Catch and kill jurisdiction is a recurrent and growing phenomenon. This Article defines catch and kill jurisdiction and identifies areas where it can be found today, including in transnational and complex cases. This Article argues that catch and kill is likely to arise when federal judges are willing and able to expand federal jurisdiction and when federal courts are hostile to certain classes of claims or litigants. It also shows how catch and kill feeds back into more catch and kill—what I call the catch and kill ratchet.

On the normative side, this Article does not argue that catch and kill is inherently wrong—indeed some examples of catch and kill are normatively preferable. Instead, this Article argues that catch and kill jurisdiction is problematic when it relies on seeming neutrality, obscurity, and delegation to achieve deregulatory ends that might not be possible through substantive lawmaking. These concerns are exacerbated because federal judges—not legislators—are the lawmakers in catch and kill. Federalism values also are at stake when catch and kill defeats claims arising under state law. This Article’s analysis of catch and kill also helps clarify some of the issues raised by the Class Action Fairness Act, in which Congress employed a catch-and-kill-like strategy in service of deregulation.

Finally, this Article explains why it will be challenging to reverse catch and kill in gross, though there are strategies to resist catch and kill in individual cases.

Keywords: civil procedure, jurisdiction, federal courts, transnational litigation, subject matter jurisdiction, removal, foreign affairs, law and courts